Before
the Court is plaintiffs' Motion to Dismiss, filed
February 28, 2018. On March 5, 2018, defendant filed his
response, and on March 7, 2018, plaintiffs filed their reply.
Based upon the parties' submissions, the Court makes its
determination.

Pursuant
to Federal Rule of Civil Procedure 41(a)(2), plaintiffs move
this Court to dismiss this case in its entirety[1] and without an
award of attorneys' fees or costs to defendant.
Specifically, plaintiffs assert that despite the strength of
their claims, they are financially unable to continue with
this litigation. Defendant contends that if the Court is
inclined to dismiss plaintiffs' claims, it should at
least do so with prejudice and subject to certain conditions.
Specifically, defendant contends that this Court should find
this to be an exceptional case and award defendant his
reasonable attorneys' fees or, alternatively, find that
defendant is the prevailing party which would entitle him to
subsequently move for fees.

Rule
41(a)(2) provides in pertinent part: “Except as
provided in Rule 41(a)(1), an action may be dismissed at the
plaintiff's request only by court order, on terms that
the court considers proper.” Fed.R.Civ.P. 41(a)(2).

Absent “legal prejudice” to the defendant, the
district court normally should grant such a dismissal [under
Rule 41(a)(2)]. The parameters of what constitutes
“legal prejudice” are not entirely clear, but
relevant factors the district court should consider include:
the opposing party's effort and expense in preparing for
trial; excessive delay and lack of diligence on the part of
the movant; insufficient explanation for the need for a
dismissal; and the present stage of the litigation. Each
factor need not be resolved in favor of the moving party for
dismissal to be appropriate, nor need each factor be resolved
in favor of the opposing party for denial of the motion to be
proper.

Having
carefully reviewed the parties' submissions, as well as
the court file in this case, the Court finds that this action
should be dismissed with prejudice pursuant to Rule 41(a)(2).
Specifically, having considered the factors set forth above,
the Court finds that because this case will be dismissed
with prejudice, there will be no legal prejudice to
defendant, even considering defendant's effort and
expense over the last approximately three and a half years
since this case was filed. Further, the Court finds there has
been no excessive delay or lack of diligence on the part of
plaintiffs, plaintiffs have provided a sufficient explanation
for the need for a dismissal, and while this case is set on
the Court's May 2018 trial docket, plaintiffs' motion
was filed prior to defendant filing a motion for summary
judgment and prior to any pretrial motions being filed, and
was not filed on the eve of trial. Accordingly, the Court
finds that plaintiffs' motion to dismiss should be
granted.

Since
the Court has determined that this case should be dismissed
with prejudice, the Court must now determine whether an award
of attorneys' fees should be a condition of such
dismissal. The Tenth Circuit “adhere[s] to the rule
that a defendant may not recover attorneys' fees when a
plaintiff dismisses an action with prejudice absent
exceptional circumstances.” Aerotech, Inc. v.
Estes,110 F.3d 1523, 1528 (10th Cir. 1997). Exceptional
circumstances include such situations as where a plaintiff
“makes a repeated practice of bringing claims and then
dismissing them with prejudice after inflicting substantial
litigation costs on the opposing party and the judicial
system.” Id. Having reviewed the parties'
submissions, as well as the court file, the Court finds there
is not sufficient evidence that plaintiffs have engaged in
any practice that would constitute exceptional circumstances
to justify an award of attorneys' fees under the
provisions of Rule 41(a)(2).[2]

[1] In their reply, plaintiffs make it
clear that they are seeking to dismiss this action with
prejudice.

[2] In his response, defendant asserts
that if the Court is unwilling to condition dismissal on the
payment of defendant&#39;s fees and costs, it should
determine defendant is the &ldquo;prevailing party&rdquo;
Plaintiffs did not address this assertion in their reply. In
relation to this issue the Court would simply note that the
Tenth Circuit has ruled that a plaintiffs dismissal of its
complaint renders the defendant a prevailing party. See ...

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